Citation Nr: 0502531
Decision Date: 02/03/05 Archive Date: 02/15/05
DOCKET NO. 02-10 276 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
A. Jaeger, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1969 to
September 1971. He died in May 1997. The appellant is the
veteran's surviving spouse.
The case comes before the Board of Veterans' Appeals (Board)
on appeal from a November 2001 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York.
In connection with this appeal the appellant and her daughter
testified at a hearing in Washington, D.C., before the
undersigned in November 2004; a transcript of that hearing is
associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required on her part.
REMAND
? This claim is remanded for additional development
consistent with the Veterans Claims Assistance Act of
2000 (VCAA).
? This claim is remanded to obtain additional service
medical records.
? This claim is remanded to obtain outstanding medical
records.
The VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107
(West 2002), and its implementing regulations, codified at 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004), are
applicable to the claim now before the Board. The Board
finds that a remand is necessary to ensure complete
compliance with the VCAA and its implementing regulations in
this case.
As reported on the veteran's death certificate, the immediate
cause of the veteran's death was bilateral pneumonia due to
or as a consequence of metastatic carcinoma of the right
tonsil. Chronic lung disease and chronic alcoholism were
also listed on the death certificate as other significant
conditions contributing to death, but not related to the
immediate cause of death. The appellant contends that while
the veteran was serving in Vietnam, he was exposed to
herbicides, to include Agent Orange. As a result, she claims
that the veteran developed cancer of the throat, specifically
the right tonsil. Alternatively, the appellant argues that
the veteran's cause of death, to include pneumonia and
chronic lung disease, was related to the pneumonia that he
was treated for during his military service. The appellant,
therefore, claims the veteran's death should be service
connected.
The November 2001 rating decision on appeal, as well as the
statement of the case and supplemental statements of the
case, appear to have only addressed whether the appellant was
entitled to service connection for the veteran's death under
the regulations applicable to presumptive service connection
based on exposure to herbicides. See 38 C.F.R. §§ 3.307,
3.309. However, it does not appear that the RO has developed
evidence regarding service connection on a direct basis nor
adequately addressed whether service connection on such a
basis is warranted. As such, a remand is warranted for
additional development and action consistent with the VCAA.
Specifically, at the appellant's November 2004 Board hearing,
she indicated that the veteran's service medical records may
be incomplete as such may have been filed under a different
social security number. While on remand, the RO should
request any additional service medical records under the
alternative social security number provided by the appellant
at her Board hearing (located on page 3 of the hearing
transcript contained in the claims file).
Also, the appellant indicated that there may be outstanding
medical records. She specifically identified records from
Dr. M. and Genesee Hospital. There are records from both Dr.
M. and Genesee Hospital contained in the claims file;
however, while on remand, the RO should ensure that complete
records from both have been obtained. Additionally, the
appellant should be requested to identify all relevant
treatment for the veteran's pneumonia and/or chronic lung
disease dating from his release from active military duty and
continuing until his death.
At her Board hearing, the appellant further indicated that
she may have evidence in her possession that is relevant to
her claim, to possibly include letters and medical
information. While on remand, she should be given an
opportunity to submit such evidence for consideration in
connection with her claim.
Accordingly, this case is REMANDED for the following:
1. The appellant should be given an
opportunity to submit any additional
evidence in her possession as relevant to
the pending claim.
2. The RO should obtain any additional
service medical records filed under the
social security number indicated by the
appellant at her November 2004 Board
hearing (located on page 3 of the hearing
transcript contained in the claims file).
3. The appellant should be requested to
provide the name, address, and
approximate dates of treatment for the
veteran's pneumonia and/or chronic lung
disease dating back to the veteran's
release from active military duty, as
well as release forms, if necessary, for
each indicated physician or facility.
The RO should take the appropriate steps
to obtain any outstanding records as
identified by the appellant, to include
any records from Dr. M. and Genesee
Hospital. A negative response for any
records that cannot be obtained should be
associated with the claims file. For VA
records, requests must continue until the
RO determines that the records sought do
not exist or that further efforts to
obtain those records would be futile.
Any records obtained should be associated
with the file.
4. The RO should then conduct any
additionally indicated development, to
include obtaining any medical opinion
deemed necessary for the appropriate
adjudication of the claim.
5. After completing the above, the
appellant's claim should be re-
adjudicated, based on the entirety of the
evidence and with consideration of
whether service connection for the
veteran's death is warranted on a direct
basis. If the benefit sought on appeal
is not granted to the appellant's
satisfaction, she and her representative
should be provided with a supplemental
statement of the case. An appropriate
period of time should be allowed for
response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§
5109B, 7112).
_________________________________________________
G. H. Shufelt
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).